Executive Orders: How Do They Work?

After seeing a barrage of executive orders come out of President Trump’s White House, many may be asking themselves the exact boundaries of what these orders can do.  At a first glance, the executive order can seem an awful lot like the President ruling by fiat and thus rub people the wrong way.  However, every President to be in office has used them as a tool–from John Adams, James Madison, and James Monroe with only one executive order each all the way up Franklin D. Roosevelt with the most at 3,522 orders.

Trump, with 5 orders and 10 presidential directives in his first week, has set a new record for orders signed during the first week of a presidency and is on track to issue thousands of executive orders.  Although Trump seems unlikely to maintain this pace on orders, the nature and reach of the executive orders that have already come out of Trump’s office are such that now is a particularly good time to understand exactly how the things work.

Difference Between Executive Orders, Presidential Memorandums, and Presidential Directives

So both executive orders and presidential directives have already been mentioned–with Trump signing twice as many presidential directives as executive orders–and it’s worth describing the difference between the two.  In general they are both fairly similar, holding equivalent force of law, however most of the differences come down to some simple procedural things.

Executive orders have a number of legal requirements which must be fulfilled before being enacted by a president.  They must be published in the Federal Register, must cite the president’s authority to make such an order, and–as of 2014–must include a report estimating the costs associated with the order.  Presidential directives, also known as presidential memos, require none of these things.  With the more lax requirements, it’s no surprise Trump has used the tool so much more often than executive orders.

While they do have similar effect in law, there is some difference at least in perception.  Executive orders are, due to their history and procedure involved, are considered more prestigious to a degree.  What’s more, in terms of legal precedent, an executive order will beat out a contrary presidential directive.

Presidential directives and presidential memos are extremely similar.  However, presidential directives are more often used in national defense matters, partially because the lack of a publication requirement allows them to–if necessary–be confidential from inception.  They are also commonly used where the President needs to delegate tasks or direct an agency of the government to adopt a new policy or take a certain course of action.

What Are the Limits of An Executive Order?

First and foremost, all the orders we’ve discussed carry the full force and weight of a law.  The orders draw authority from Article II of the Constitution, although the power is not clearly defined therein.  However, while executive orders do allow the president to entirely bypass Congress, they are not without limitations–checks and balances.

Executive orders obviously can’t violate the constitution.  The Supreme Court can, and has on many occasions, strike down an executive order as unconstitutional where it violates the rights guaranteed by the constitution, acts contrary to congressional intent, or exceeds the power of the president.  For instance, when President Truman attempted to seize the steel industry by executive order during the Korean War, the Supreme Court ruled the order unconstitutional and stopped him in his tracks.  What’s more, any Federal District Court has the power to issue an emergency injunction preventing an executive order from taking effect across the nation where the situation calls for it–where there is a likelihood of success on the merits, an imminent danger of irreparable injury,  the other party (the government) will not be injured by a stay, and the interests of justice favor an injunction.  In fact, a New York District Court Judge did just that a few days ago–putting a stay on parts of Trump’s controversial “Muslim Ban” executive order.

Congress can also generally overrule an executive order by passing a law which alters or eliminates an existing executive order.  However, these laws are obviously subject to a veto from the president which would force Congress to pass the law overruling the executive order by two-thirds vote.

The subject matter of an executive order also changes the force behind the order–as well as the chance Congress will act to overrule it or the courts strike it down as unconstitutional and outside the purview of the power of the Executive Branch.  Where the executive order deals with something immediately within the power of the executive–something we’ll discuss in a moment–or with the express or implied consent of an act of Congress and executive order is at its strongest and least likely to be overturned–barring a conflict with the Constitutional rights of those it effects.  Where the subject matter of the order deals with an issue not in the power of the executive, but also not addressed by Congress, the authority of the order is slightly less.  Where an order goes against the will of Congress, as expressed through laws passed or the implications of those laws, it has very little power.

The President has several powers that specifically theirs, they act as Commander in Chief of the Army, Head of State, Chief Law Enforcement Officer, and Head of the Executive Branch.  These roles mean that the president is in charge of declaring war, raising and supporting armed forces, regulating the armed forces, foreign policy, negotiating treaties, appointing federal judges, and often most importantly–the duty and final say on enforcing laws and deciding how to do so.   Some of the more common areas for executive orders that this encompasses is how to enforce and implement immigration laws, delineating national security measures, appointing and controlling ambassadors, setting foreign policy and directing agencies how to behave.  All of these subjects are common subjects for executive orders and are less likely to be challenged as overstepping the President’s powers.

Trump’s Executive Orders

The recent executive orders have certainly caused an uproar–leaving some happy with the changes and others truly terrified by the implications the orders could have on human lives and livelihoods.  The orders have had a trend of taking the power very far but often within the realms most within the purview of the President.  However, as seen by the Federal Court’s injunction, the orders may well have pushed the limits of the executive order into unconstitutional territory.  The fate of this order, and the many other orders issued this last week, will be something that will likely be up to the courts as time goes on.